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1. Appellant-wife has filed this appeal under Section 28 of the Hindu Marriage Act,1955 (in short, the Act) against the judgment and decree of the Matrimonial Court by which her divorce petition filed under Section 13 of the Act was dismissed on October 17,1995.

2. The uncontroverted facts are that the appellant was married to the respondent on September 27,1990, as per Hindu rites at Ambala City. They lived together till November 26, 1990. Since then they are living separately.

3. In the divorce petition, the appellant-wife pleaded that even on the day of the marriage the behaviour of the respondent towards her was cruel as he demanded Rs. 50,000/- saying that her father has not spent any money on her marriage. After that demand some amount was given to the respondent by the appellant. Once she was pushed from the stairs, thereby she sustained injuries on her foot, but she was not taken to any doctor. Two days thereafter the respondent and his sister came to the parents of the appellant and insulted them. The appellant is working in the Insurance Company. She joined her duty on November 3, 1990. When she returned home late due to Mandal Commission's riots, respondent's family fanned the rumour that she had run away. She was forced by the respondent to take a loan for purchasing a scooter for him. She was mercilessly beaten on November 25,1990. She tried to lodge a report on November 26,1990, against the respondent and his family members. She was turned out of the matrimonial home on November 26,1990. She reached her parental home and on December 4, 1990, she lodged a report against her husband and his mother, which was registered by the police on December 28, 1990. Thus, she claimed divorce on the grounds of cruelty and desertion.

4. Husband-respondent in his reply denied all these allegations of cruelty, desertion, demand of dowry etc. According to him, the appellant herself was not ready to live with the respondent and wanted a divorce. She lodged a false report against him and his mother under Sections 406 and 498-A, IPC.

5. Issues were framed by the Matrimonial Court. Both the parties adduced their evidence.

6. The Matrimonial Court held that the appellant-wife has failed to prove that she was treated with cruelty by the husband -respondent or was deserted by him. Hence her divorce petition was dismissed on October 17,1995.

7. During the pendency of this appeal, on July 29, 1996, the parties filed a joint petition under Section 13-B of the Act read with Section 151, CPC for convert- ing the proceedings under Section 13 of the Act to proceedings under Section 13-B of the Act. In this petition they have alleged that due to temperamental differences, they have separated. The appellant-wife filed a petition under Section 13 of the Act, which was dismissed on October 17, 1995. The wife has preferred the aforesaid appeal against that judgment and decree. During the reconciliation proceedings of that appeal, both the parties have arrived at a compromise, which is annexed as Annexure A-l. The parties are living separately since November 26,1990. There is no issue out of this wedlock between the parties. They have settled that the husband would pay a sum of Rs. 25,000/- to the wife in full and final settlement of all her claims against the husband-respondent.

8. Parties statements were recorded on that very day to verify whether this petition is submitted by them with their free Will and consent, without any force, coercion or undue influence. Both the parties deposed on oath that they have agreed to obtain divorce by mutual consent and they have signed the compromise Annexure Al, after understanding its contents. Wife admitted that she has received Rs. 25,000/- from her husband in full and final settlement of her claims against him. She also admitted that she has got FIR No. 631 registered against the husband on December 28,1990, under Sections 406/498-A, IPC. She agreed that she would get this FIR quashed by the High Court. Husband has filed Criminal Misc. No. 13269-M of 1996 under Section 482, Cr. P.C. for quashing this FIR.

9. Both the Counsel pray that decree of divorce be granted on the basis of the compromise AnnexureA-1 filed by the parties in the Court, in support of which they have already given their statements. They also argued that the parties have entered into this compromise without any undue influence or coercion. They argued that the parties were married on September 27,1990. They lived together only till November 26,1990. Since then they are living separately. Many attempts have been made by both the sides for reconciliation. Even when the divorce petition was pending before the Matrimonial Court, an attempt was made for reconciliation, but with no result. After about six years of living separately, they have decided that they should obtain divorce by mutual consent. They also argued that considering the age-group of the parties, it is in their interest if divorce is granted to them immediately instead of waiting for six months, as is required under Section 13-B(2) of the Act. Both the Counsel argued that if divorce is granted to them without losing this time, the parties may enter into a fresh matrimonial alliance and can resettle in their lives. Thus their broken homes can be re-established. In support of their arguments, they have placed reliance on Sukesh Bhatia v. Anita Bhatia, 1995(2) HLR 457; Naveen Bansal v. Seema Bansal, 1995(2) HLR 529; Ved Kumari v. Ramesh Chander @ Subash, 1992(2) HLR 141; Jai Bhagwan v. Sushila @ Chanda, 1995(2) HLR 531; Surinderjit Singh v. Gurdeep Kaur & Anr.,1992(2) HLR 218; Naresh Kumar v. Smt. Sarla, 1992(2) HLR 449; Madan Lal v. Smt. Nirmal Kanta@ Lalit, 1990(1) HLR 168; K. Omprakash v. K. Nalini, 1987(2) HLR 230; Jagroop Singh v. The General Public, 1981 HLR 269; Jagmohan Ahuja v. Smt. Sudesh, 1979 HLR 303; Smt. Nirmal Devi v. Sat Pal, 1984 HLR 475.

10. In Naveen Bansal's case (supra) a Single Bench of this Court granted divorce under Section 13-B of the Act, waiving the period of six months. In that case the wife received Rs. 3 lacs as permanent alimony and agreed to get her complaint quashed, which she lodged under Sections 406/498-A, IPC and under Dowry Prohibition Act.

11. In Ved Kumari's case (supra) another Single Bench of this Court held that the parties are living separately for the last more than one year and there is no likelihood of any reconciliation for their living together. Considering the facts, the Single Bench held that it will be of no use to keep misapplication pending for statutory period of six months as contemplated by Section 13-B(2) of the Act as the litigation between the parties, is pending for a period of over four years and they have not been able to reconcile to live together during this period inspite of efforts of both sides to do so. Hence, period was waived and divorce was granted.

12. In Surinderjit Singh's case (supra) parties were living separately for more than six years. Husband filed a divorce petition, which was dismissed. When his appeal was pending before the High Court, parties filed a petition under Section 13-B of the Act and prayed that the period of six months be waived off. Husband paid Rs. 25,000/-in Iumpsum to the wife in full and final satisfaction of her claims. The learned judge held that in his opinion the parties have reached such a stage where their living together has become impossible and it is a broken marriage. It will be in the interest of both the parties if application for grant of divorce by mutual consent is allowed.. Hence the divorce under Section 13-B of the Act was granted, waiving off the period of six months.

13. In Naresh Kumar's case (supra) on identical facts, another Single Bench of this Court allowed the petition under Section 13-B and waived off the period of six months under Section 13-B(2) of the Act. In that case also the parties were living separately for six years. Husband paid Rs. 21,000/- to the wife in respect of her claims.

14. In Smt. Nirmal Devi's and Jagmohan Ahnja's cases (supra) also petition under Section 13-B of the Act was allowed and period was relaxed.

15. A Division Bench of Andhra Pradesh High Court in K. OmParkash's case (supra) held that the provisions of Section 13-B(2) of the Act are directory. There provisions do not fetter on the powers of the Appellate Court to grant instant decree of divorce. The Appellate Court is competent to grant instant decree of divorce without reference to the time limit prescribed under this sub-section. In that case marriage took place between the parties on February 19,1978. Since January, 1980 they were living apart. They observed :

"However, a petition filed for divorce by consent under Section 13-B of the Hindu Marriage Act is required to be kept in abeyance for a minimum period of six months. This is in sharp contrast with a petition for divorce by consent under Special Marriage Act which is liable to be kept in abeyance at least for one year. This liberalising trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting that Section. But even the Clause (2) of Section 13-B requires a Court not to pass a decree for divorce before six months of time lapses and after 18 months of time passes from the date of filing of such a petition for divorce by mutual consent. This is the last hope of the Legislature for saving the marriage. The intention of the Legislature is to provide a minimum period of six months for rethinking of the parties. If the above timetable fixed by Section 13-B(2) of the Hindu Marriage Act is applied to the present application made by the parties in this case on 12th July, 1985 we have to adjourn this case till January, 1986 for passing a decree for divorce under that section, notwithstanding the fact that we are of the opinion that there is no chance of reconciliation between the parties who have been living away from each other for the last 4 Vz years and are today most anxious and ready to obtain such a decree here and now. That situation raises somewhat an important legal question as to the meaning which we should attribute to Section 13-B(2) of the Hindu Marriage Act. That question is whether the Legislature intended to Section 13-B(2) of the Hindu Marriage Act should be treated as mandatory provisions of law or the Legislature intended that section to be treated merely as a directory provisions of law. We have already noticed the language of Section 13-B(2). On first impression it is not impossible to hold Section 13-B(2) to be mandatory. As a mandatory provision of law calls for its pound of flesh and requires to be complied strictly and it is not being satisfied with offerings of mere substantial compliance of its commands, we will have to adjourn this matter for six months and postpone the deliverance to the parties from this deadlock by that period of time. It is well settled proposition of law that a statutory provision though mandatory in form, can yet be treated as directory in substance. The question then arises whether there is anything in the text for Section 13-B(2) or its context or purpose or design that calls for Section 13-B(2) being interpreted as directory. In our opinion, there are weighty reasons warranting the reading of Section 13-B, Clause (2) as directory. In that context, we must first call attention to the design of the law expressed in its liberalising tendency of providing relief to the parties on the basis of their mutual consent from their broken marriages. We must remember that this relief is granted by bringing about a profound alteration in the concept of a Hindu Marriage from that of a sacrament to a contract. By that alteration law has definitely set its fact against forcible perpetuation of the statutory matrimony between unwilling part- ners. Next, we must note that this six months' time fixed by Section 13-B(2) is no rule relating to the jurisdiction of the Court to entertain a petition filed for divorce by consent. That question of jurisdiction is dealt with by Section 13-B(1) of the Act and must be strictly complied with Section 13-B(2) is a part of mere procedure. A procedural provision must be interpreted as a handmaid of justice in order to advance and further the interests of justice and not as a technical rule. Above all we should note that if Section 13-B(2) is read as a mandatory provision and as applicable to the exercise of matrimonial jurisdiction by the Appellate Courts also, Section 13-B(2) becomes totally unworkable. According to the literal reading of Section 13-B(2) the Courts cannot pass consent decree of divorce beyond 18 months' period from the date of its filing."

They further held :

"For all the above reasons, we are of the opinion that Section 13-B(2) of the Hindu Marriage Act should be read as directory only. Section 13-B(2), no doubt cautions the Courts of its duty to fight the last ditch battle to save the marriage; but when the Court is fully satisfied, on the basis of the proved facts, that in the interests of justice of the society and the individuals marriage tie should be put as under immediately. Section 13-B(2)does not impose any fetter on the powers of the Court to grant instant decree of divorce. At any rate, we are clearly of the opinion that the time table fixed by Section 13-B(2) does not apply to an Appellate Court. The great Telugu poet Vemana said that the broken iron can be joined together, but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightaway. Accordingly, we pass a decree of divorce declaring the marriage between the appellant and the respondent as dissolved with immediate effect."

16. In Madan Lal's case (supra) a Division Bench of this Court also considered such facts. Husband-Madan Lal filed a petition under Section 13 of the Act, which was allowed. Resondent-wife filed an appeal before the High Court, which was allowed by a Single Bendi on April 30,1984. Husband-Madan Lal filed LP A before the Division Bench. During the pendency of the LPA, the parties agreed to obtain a decree of divorce by mutual consent under Section 13-B of the Act, in view of their living separately for a period of 10 years. They filed a joint petition with a prayer that the original divorce petition filed by the husband may be treated as petition under Section 13-B of the Act. They also gave their statements to that effect in the Court. The Division Bench held that since the parties have been litigating since 1980, have not been able to reconcile, it will be futile to allow a period of six months before passing a decree of divorce as provided under Section 13-B(2) in view of the amendment. Thus, the petition under Section 13-B was allowed and period of six months was waived.

17. In Sukesh Bhatia's case (supra) a Division Bench of this Court had an occasion to consider such a situation. In that case the parties were living separately for a long period. The Division Bench held that their marriage is irretrievably broken inspite of all efforts for reconciliation and they have agreed that ex-parte decree of divorce between them be converted into adecree of divorce by mutual consent. Considering these aspects the Division Bench dispensed with the requirement of six months' notice and by its order dated March 1, 1995, converted ex-parte decree of divorce into a decree of divorce by mutual consent on the terms and conditions contained in the agreement of divorce reproduced therein.

18. This very Division Bench again decided such a matter on May 2,1995, in Jai Bhagwan's case (supra). In that case the parties were married on November 1, 1987. They started living separately since May 14, 1988. Husband filed divorce petition under Section 13 of the Acton August 30,1990, on the grounds of cruelty and desertion on the part of the respondent-wife. His petition was dismissed on May 3, 1994. His appeal was pending before the High Court. Attempts for reconciliation were made. During the reconciliation proceedings on March 29, 1995, the parties agreed to settle their disputes/claims and dissolve their marriage by a decree of divorce by mutual consent on payment of Rs. one lac to the respondent-wife in full and final settlement of all her claims. The Division Bench held that the parties are residing separately for the last more than half a decade. It is a case of irretrievable broken marriage. Hence it would be consistent in the interest of justice to dispose of the matrimonial dispute expeditiously as envisaged by legislation. They observed :

"We are fuly satisfied that for granting the relief of decree of divorce by mutual consent to the parties, there is no impediment/disability, from which the parties suffer. In view of the large number of adjournments given it is obvious that the parties have neither connived nor condoned any act of desertion complained of.

4. Keeping in view the hardship, long protracted litigation inter se the parties and their having placed on the record a compromise deed mark 'X' for decree of divorce by mutual consent, the marriage between the two has become unworkable because of irreconciable differences. We are satisfied that the parties are entitled to a decree of divorce by mutual consent in terms of compromise deed mark 'X'."

Resultantly, a decree of divorce by mutual consent in terms of the compromise was granted.

19. Lately,in Matnta Sabharwal v. Ravinder Kumar Sabharwal, FAONo.46- M of 1995, decided on April 22,1996, a Division Bench of this Court again had an occasion to consider such facts. In that case also the respondent-husband filed a petition under Section 9 of the Act in the Matrimonial Court, which was allowed. Wife filed appeal against that judgment and decree. During the pendency of the appeal, the parties filed a petition under Order 6, Rule 17, CPC praying conversion of petition filed under Section 9 of the Act into a petition under Section 13-B of the Act. In the amendment petition, the parties averred that they are temperamentally different and have mutually agreed to dissolve the marriage. They appended their joint affidavits also in support of the petition. This petition was allowed. They also made a prayer that period provided under Section 13-B(2) of the Act be waived and decree of dissolution of marriage be granted at that very stage. The Division Bench referred to the judgment of the Apex Court in Sureshta Deviv. OmParkash, AIR 1992 S.C. 1904. It also considered the judgments of this Court in Harcharan Kaur v. Nachhattar Singh, AIR1988 P&H 27; Smt. Krishna Khetarpal v. Satish Lal, AIR 1987 P&H 191; Lalit Kumar v. Sushma Sharrna,1995(1) PLR 255 and Niranjan Kumar v. Vecna Rani, 1995(1) All India Hindu Law Reporter 123 (Pb. & Hry.), and held that in view of the above decisions it must be held that the Court cannot pass a decree of divorce before the expiry of six months counted from the date of the presentation of a petition under Section 13-B of the Act. They observed that the above-referred two judgments Lalit Kumar and Niranjan Kumar, (supra) have to be read as confined to the facts of those cases and cannot be read as laying down any proposition of law regarding interpretation of Section 13-B of the Act. Thus, they held that the period of six months prescribed under Section 13-B(2) of the Act is mandatory and the Court can pass a decree of divorce only after the expiry of the period of six months counted from the date of filing of the petition under Section 13-B(1) of the Act.

20. The facts of Sureshta Devi's case (supra) were different. In that case the parties filed a petition under Section 13-B(1) of the Act for obtaining divorce by mutual consent before the Matrimonial Court. Within six days of the presentation of the petition, the wife withdrew her consent. The point arose whether a party can unilaterally withdraw consent. Some orders were passed by the Matrimonial Court-ultimately the petition filed under Section 13-B(1) of the Act was dismissed by the District Judge, but on appeal the High Court of Himachal Pradesh granted divorce decree on the basis of that petition, holding that a spouse who has given consent to a petition for divorce cannot unilaterally, withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. The matter went to the Apex Court. The Apex Court held :

"From the analysis of the section, it will be apparent that the filing of the petition with mu tual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum is obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both."

Their Lordships further observed :

"What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.

Sub-sec t5 on (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B."

The Apex Court affirmed the view taken by the Kerala High Court in JFC.I. Mohanan v. Jeejabai, AIR 1988 Kerala 28, by this Court in Harcharan Kaur v.Nachhattar Singh, AIR 1988 Pb and Haryana 27, and by Rajasthan High Court in Santosh Kumari v. Virendra Kumar, AIR 1986 Rajasthan 128, wherein they held that it is open to one of the spouse to withdraw the consent given to the petition at any time before the Court passes a decree of divorce.

21. Thus, it is apparent that whole of the judgment of the Apex Court rests on this premise whether either party can withdraw his or her consent before the petition filed under Section 13-B(1) of the Act is accepted by the Court and in that background the provisions of Sections 13-B(1) and (2) are interpreted and it is held that when a petition is filed before the District Court, the Court is required to wait for six months minimum and 18 months maximum and after holding further enquiry and being satisfied that the parties have given their consent without any fear or undue influence, then to pass a decree of divorce on the basis of mutual consent.

22. If from the facts and circumstances of the case, the Court comes to a conclusion that the marriage is irretrievably broken - it has virtually become a deadlock - and there is hardly any scope for reconciliation or for any other type of rethinking the Court is competent to grant a decree of divorce on the basis of their mutual consent.

"....It is not disputed that the parties are living separately for the last more than three years. We have no doubt in our mind that the marriage between the parties has irretrievably broken down. There is no chance whatsoever of their coming together. The parties have made joint request for mutual divorce. The written request by the parties has been placed on the record. In order to do complete justice between the parties, we are inclined to grant decree in divorce on the following agreed terms."

Thus, the petition filed under Section 13-B of the Act was allowed and decree of divorce was granted.

24. Section 13-B(l) lays down when a joint petition is laid before the District Judge alleging that they have been living separately for a period of one year or more; that they have not been able to live together and that they have mutually agreed that the marriage be dissolved. This provision is introduced in 1976 by amendment. The purpose of this provision is to give speedy relief to the parties, if for long they are living separately and there is no possibility of their living together, then their just volitional act should be respected and divorce be granted to them.

25. Legislature has contemplated that if by moving such a petition they have knocked the door of the District Judge's Court, it is required that they should be given a reasonable time for reflection and rethinking to consider the pros and cons of divorced life, to take assistance of their relations and friends to make an attempt for their reconciliation. But if the spouses are litigating for the last many years, many futile attempts have already been made by both fine parties to come under the same roof to lead a harmonious, loveable, peaceful marital life, then in the second inning of their litigation, if after being ti red of these litigation bouts, they submit to the jurisdiction of the Appellate Court and make a humble prayer that they are living separately for long, they cannot live together, so by their mutual consent they have decided to obtain divorce, if at that juncture, this relief is not granted to them, it means that soul of the provision is sacrificed for the form only.

26. Legislature has given this right to such spouses even when they are living separately for one year or more, but if for years together they are living separate, are not able to rejoin each other, virtually they have already saped their marital tie, they only want a judicial recognition of that. If at that juncture they are made to wait for six months more, they will be forced to carry the pillory of marriage for long six months with no purpose. When they are fed up with their marital disputes and are trying to take their necks out of this noose, this freedom should not be denied to them.

27. Further, while accepting such petitions Court should be vigilant to see that parties have consented freely for mutual divorce. They have not acted under some duress, misrepresentation, force or fraud. In the backdrop of Indian society, which is virtually male dominated, the woman folk is likely to be a prey to all these tactics. But in this case there is no such possibility. The parties were married on September 27,1990. They lived together only upto November 26, 1990. Since then they are living apart. Wife filed petition under Section 13 of the Act on May 22, 1992. She lodged a complaint under Sections 406/498-A, IPC against the husband and she has now accepted Rs. 25,000/- from her husband in full and final settlement of all her claims and has also agreed that her complaint be quashed. Therefore, in my considered view the parties have given their consent freely for obtaining divorce by mutual consent. Thus, it is apparent that there is no violation of the spirit of the statute when marital discord has otherwise been brought to surface in Matrimonial and Criminal Courts both, leaving out any chance of collusion between the parties so as to play a fraud on the statute. Collusion being out of picture and litigation between the parties having remained rife for more than four years, justifies the grant of divorce to the parties under the spirit of Section 13-B of the Act, though not in accordance with its letter. No Court can shut its eyes to the reality of the situation. These two human beings have wrecked their lives in mutual acrimony. At both the levels i.e. in the Matrimonial Court as well as in this Court efforts for reconciliation were made, but they remained abortive. During those reconciliation proceedings, the parties arrived at this solution with a view to resettle their lives. Now they look to the Court to grant them relief. Under these circumstances, if they are made to wait for six months, that will defeat the spirit of the provision itself. This period of six months is provided to give a chance to the parties for reconciliation, but in this case that chance is lost for they themselves have filed such a petition as their desperate last move to seek peace and harmony in life. In my considered view, it should not be denied to them. Now if they want to break their matrimonial bond right now, they should be allowed to do so.

28. Thus, considering all the facts and circumstances of the case, the petition is allowed. Period of six months is waived and a decree of divorce on the basis of mutual consent is granted to the parties with immediate effect. A copy of the decree be furnished to both the parties free of costs.

Sunday, August 26, 2012

Mutual Consent Divorce can granted before statuary period of six month-Supreme Court of India.
The Hon"ble Supreme Court of India has granted the divorce by way of Mutual consent under section 13-B Hindu marriage Act 1955, before statuary period of six months to a couple who living separately since one and half years and already they completed the four months of statuary period.
Here is the judgment passed by the Ho"ble Court:
Supreme Court of India
Devinder Singh Narula vs Meenakshi Nangia on 22 August, 2012
Bench: Altamas Kabir, J. Chelameswar
|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5946 OF 2012
(Arising out of SLP(C)No.21084 of 2012)
1 Devinder Singh Narula … Appellant
Vs.
2 Meenakshi Nangia … Respondent
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. This appeal arises out of an order passed by the Additional District Judge-01, West Delhi, on 13.4.2012 in HMA No.204/2012, while entertaining a joint petition filed by the parties under Section 13-B of the Hindu Marriage Act, 1955. On such petition being presented, the learned Court below posted the matter on 15.10.2012 for the purpose of second motion, as contemplated under Section 13-B of the aforesaid Act, which is extracted hereinbelow for reference:- “13-B.Divorce by mutual consent – (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment)Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
3. The Section itself provides for a cooling period of six months on the first motion being moved, in the event the parties changed their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved, and at that point of time, if the parties have made up their minds that they would be unable to live together, the Court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
4. Aggrieved by the said order of the learned Additional District Judge, fixing the date of the 2nd motion after six months, the petitioner has moved this Court by way of this appeal, relying on a decision of this Court in Anil Kumar Jain vs. Maya Jain [(2009) 10 SCC 415], whereby after arriving at a conclusion that the marriage between the parties had broken down irretrievably, this Court felt justified to invoke its powers under Article 142 of the Constitution.
5. On behalf of both the parties it was urged that since more than 18 months had elapsed since the original petition under Section 13 of the Hindu Marriage Act, 1955, have been filed, the said period could be counted towards the cooling period of six months stipulated under Section 13-B of the above Act. It was urged that by such reckoning the parties have already completed the waiting period of six months, as envisaged under Section 13-B of the Act.
6. It was also urged that the other conditions contained in Section 13- B(1) of the Act had also been satisfied as the parties had been living separately for more than a year and had mutually agreed that the marriage should be dissolved. It was urged that except for the formality of not having made an application under Section 13-B, the other criteria had been duly fulfilled and having regard to the language of Section 13-B, a decree of dissolution of the marriage by way of mutual divorce should not be denied to the parties, since four months out of waiting period of six months contemplated under Section 13-B had already been completed.
7. It was contended that as was done in the case of Anil Kumar Jain (supra), this Court could invoke its powers under Article 142 of the Constitution in the best interest of the parties. It was urged that technicality should be tampered by pragmatism, if substantive justice was to be done to the parties.
8. On behalf of the State it was submitted that in view of the statutory provisions, the prayer being made on behalf of the petitioner and the respondent wife should not be entertained as that would lead to confusion in the minds of the public and would be against the public interest.
9. We have carefully considered the submissions made on behalf of the parties and have also considered our decision in Anil Kumar Jain’s case (supra). It is no doubt true that the Legislature had in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the Legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC 243], which was considered in Anil Kumar Jain’s case, after living separately for many years and 11 years after initiating proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before this Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the aforesaid Act, this Court by invoking its powers under Article 142 of the Constitution, granted a decree of mutual divorce at the stage of the SLP itself. In different cases in different situations, this Court had invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.
10. Though we are not inclined to accept the proposition that in every case of dissolution of marriage under Section 13-B of the Act the Court has to exercise its powers under Article 142 of the Constitution, we are of the opinion that in appropriate cases invocation of such power would not be unjustified and may even prove to be necessary. The question with which we are faced is whether this is one of such cases?
11. As will appear in the averments made in this appeal, the appellant filed a petition under Section 12 of the Hindu Marriage Act on 1.6.2011 on the ground that the marriage contracted on 26.3.2011, was a nullity; that the parties had been living separately since their marriage and have not cohabitated with each other since 1.6.2011 and in future also they could never live together under one roof. According to the parties, they are residing separately from each other for the last one year and the respondent was presently working overseas in Canada. It is with such object in mind that during the pendency of the proceedings under Section 12 of the Act the parties agreed to mediation and during mediation the parties agreed to dissolve their marriage by filing a petition under Section 13-B of the above Act for grant of divorce by mutual consent. In the proceedings before the Mediator, the parties agreed to move appropriate petitions under Section 13-B(1) and 13-B(2) of the Act. A report was submitted by the Mediator of the Mediation Centre of the Tis Hazari Courts to the Court in the pending HMA No.239 of 2011. It is pursuant to such agreement during the mediation proceedings that an application was filed by the parties in the aforesaid pending HMA on 15.12.2011 indicating that they had settled the matter through the mediation centre and that they would be filing a petition for divorce by mutual consent on or before 15.4.2012. On the strength of the said petition, the HMA proceedings were disposed of as withdrawn. Subsequently, on 13.4.2012 the parties filed a joint petition under Section 13-B of the Act on which the order came to be passed by the learned Additional District Judge -01, West Delhi, fixing the date for the second motion on 15.10.2012.
12. It is quite clear from the materials on record that although the marriage between the parties was solemnized on 26.3.2011, within 3 months of the marriage the petitioner filed a petition under Section 12 of the Hindu Marriage Act, 1955, for a decree of nullity of the marriage. Thereafter, they have not been able to live together and lived separately for more than 1 year. In effect, there appears to be no marital ties between the parties at all. It is only the provisions of Section 13-B(2) of the aforesaid Act which is keeping the formal ties of marriage between the parties subsisting in name only. At least the condition indicated in Section 13-B for grant of a decree of dissolution of marriage by the mutual consent is present in the instant case. It is only on account of the statutory cooling period of six months that the parties have to wait for a decree of dissolution of marriage to be passed.
13. In the above circumstances, in our view, this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution. The marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired. When it has not been possible for the parties to live together and to discharge their marital obligations towards each other for more than one year, we see no reason to continue the agony of the parties for another two months.
14. We, accordingly, allow the appeal and also convert the pending proceedings under Section 12 of the Hindu Marriage Act, 1955, before the Additional District Judge-01, West Delhi, into one under Section 13-B of the aforesaid Act and by invoking our powers under Article 142 of the Constitution, we grant a decree of mutual divorce to the parties and direct that the marriage between the parties shall stand dissolved by mutual consent. The proceedings before the Additional District Judge-01, West Delhi, being HMA No.204 of 2012, is withdrawn to this Court on consent of the parties and disposed of by this order.
15. In the facts of the case, the parties shall bear their own costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated:22.8.2012.
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Friday, March 23, 2012

The Govt. has proposed the amendment in The Hindu marriage Act 1955 in section 13-B for Divorce by Mutual Consent.earlier the law was that after competition of one year of marriage if couple wants to break their marriage by way of mutual consent then they have to wait upto six months. Now the Indian Govt. proposed the amendment to dissolve the marriage by way of mutual consent and given the powers to the court to waive a six months period of staying together before divorce can be granted in cases where the separation is by mutual consent.

Tuesday, May 24, 2011

Mutual Divorce Decree can not be passed if spouse withdraw the consent.

Divorce cannot be granted under Hindu marriage Act 1955 to a Hindu couple if either of the spouse withdraws the consent before the judicial decree is passed, the Supreme Court has passed the Judgment in this regard.

A bench of justices D K Jain and H L Dattu said in a that the most important requirement for grant of a divorce by mutual consent is free consent of both the parties.

IN THE SUPREME COURT OF INDIA

CIVIL APPEALATE JURISDICTION

CIVIL APPEAL NO. 6288 OF 2008

Hitesh Bhatnagar .............. Appellant versus

Deepa Bhatnagar ..............Respondent J U D G M E N T

H.L. Dattu, J.

1) Marriages are made in heaven, or so it is said. But we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with. Such is the case presently before us. 2) The appellant-husband and the respondent-wife got married according to the Hindu Marriage Act, 1955 [hereinafter referred to as `the Act'] in 1994, and are blessed with a daughter a year thereafter. Some time in the year 2000, due to differences in their temperaments, they began 1

to live separately from each other and have been living thus ever since. Subsequently, in 2001, the parties filed a petition under Section 13B of the Act before the District Court, Gurgaon, for dissolution of the marriage by grant of a decree of divorce by mutual consent. However, before the stage of second motion and passing of the decree of divorce, the respondent withdrew her consent, and in view of this, the petition came to be dismissed by the Ld. Addl. District Judge, Gurgaon, though the appellant insisted for passing of the decree. The appellant, being aggrieved, has filed appeal No. F.A.O. No. 193 of 2003, before the High Court of Punjab and Haryana. The Learned Judge, by his well considered order, dismissed the appeal vide order dt. 08.11.2006. Being aggrieved by the same, the appellant is before us in this appeal.

3) We have heard the learned counsel for the parties and since the parties wanted to ventilate their grievances, we have heard them also. 4) The issues that arise for our consideration and decision are as under: (a) Whether the consent once given in a petition for divorce by mutual consent can be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with Section 13B (1) of the Act.

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(b) Whether the Court can grant a decree of divorce by mutual consent when the consent has been withdrawn by one of the parties, and if so, under what circumstances. 5) In order to answer the issues that we have framed for our consideration and decision, Section 13B of the Act requires to be noticed :-

13B. Divorce by mutual consent. - (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

6) Admittedly, the parties had filed a petition for divorce by mutual consent expressing their desire to dissolve their marriage due to temperamental incompatibility on 17.08.2001. However, before the 3

stage of second motion, the respondent withdrew her consent by filing an application dated 22.03.2003. The withdrawal of consent was after a period of eighteen months of filing the petition. The respondent, appearing in-person, submits that she was taken by surprise when she was asked by the appellant for divorce, and had given the initial consent under mental stress and duress. She states that she never wanted divorce and is even now willing to live with the appellant as his wife.

7) The appellant, appearing in-person, submits that at the time of filing of the petition, a settlement was reached between the parties, wherein it was agreed that he would pay her `3.5 lakhs, of which he states he has already paid `1.5 lakhs in three installments. He further states in his appeal, as well as before us, that he is willing to take care of the respondent's and their daughter's future interest, by making a substantial financial payment in order to amicably settle the matter. However, despite repeated efforts for a settlement, the respondent is not agreeable to a decree of divorce. She says that she wants to live with the appellant as his wife, especially for the future of their only child, Anamika.

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8) The question whether consent once given can be withdrawn in a proceeding for divorce by mutual consent is no more res integra. This Court, in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, has concluded this issue and the view expressed in the said decision as of now holds the field.

9) In the case of Sureshta Devi (supra.), this Court took the view: "9. The `living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression `living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they `have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.

10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue 5

influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce." On the question of whether one of the parties may withdraw the consent at any time before the actual decree of divorce is passed, this Court held:

"13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties. ... if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also 6

be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

"16. We are of opinion that in the light of the fact-situation present in this case, the conduct of the parties, the admissions made by the parties in the joint petition filed in Court, and the offer made by appellant's counsel for settlement, which appears to be bona fide, and the conclusion reached by us on an overall view of the matter, it may not be necessary to deal with the rival pleas urged by the parties regarding the scope of Section 13-B of the Act and the correctness or otherwise of the earlier decision of this Court in Sureshta Devi case or the various High Court decisions brought to our notice, in detail. However, with great respect to the learned Judges who rendered the decision in Sureshta Devi case, certain observations therein seem to be very wide and may require reconsideration in an appropriate case. In the said case, the facts were: The appellant (wife) before this Court married the respondent therein on 21-11-1968. They did not stay together from 9-12-1984 onwards. On 9-1-1985, the husband and wife together moved a petition under Section 13-B of the Act for divorce by mutual consent. The Court recorded statements of the parties. On 15-1-1985, the wife filed an application in the Court stating that her statement dated 9-1- 1985 was obtained under pressure and threat. She prayed for withdrawal of her consent for the petition filed under Section 13-B and also prayed for dismissal of the petition. 7

The District Judge dismissed the petition filed under Section 13-B of the Act. In appeal, the High Court observed that the spouse who has given consent to a petition for divorce cannot unilaterally withdraw the consent and such withdrawal, however, would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. It was found that the appellant (wife) gave her consent to the petition without any force, fraud or undue influence and so she was bound by that consent. The issue that came up for consideration before this Court was, whether a party to a petition for divorce by mutual consent under Section 13-B of the Act, can unilaterally withdraw the consent and whether the consent once given is irrevocable. It was undisputed that the consent was withdrawn within a week from the date of filing of the joint petition under Section 13-B. It was within the time-limit prescribed under Section 13-B(2) of the Act. On the above premises, the crucial question was whether the consent given could be unilaterally withdrawn. The question as to whether a party to a joint application filed under Section 13-B of the Act can withdraw the consent beyond the time-limit provided under Section 13-B(2) of the Act did not arise for consideration. It was not in issue at all. Even so, the Court considered the larger question as to whether it is open to one of the parties at any time till a decree of divorce is passed to withdraw the consent given to the petition. In considering the larger issue, conflicting views of the High Courts were adverted to and finally the Court held that the mutual consent should continue till the divorce decree is passed. In the light of the clear import of the language employed in Section 13-B(2) of the Act, it appears that in a joint petition duly filed under Section 13-B(1) of the Act, motion of both parties should be made six months after the date of filing of the petition and not later than 18 months, if the petition is not withdrawn in the meantime. In other words, the period of interregnum of 6 to 18 months was intended to give time and opportunity to the parties to have a second thought and change the mind. If it is not so done within the outer limit of 18 months, the petition duly filed under Section 13-B(1) and still pending shall be adjudicated by the Court as provided in 8

Section 13-B(2) of the Act. It appears to us, the observations of this Court to the effect that mutual consent should continue till the divorce decree is passed, even if the petition is not withdrawn by one of the parties within the period of 18 months, appears to be too wide and does not logically accord with Section 13-B(2) of the Act. However, it is unnecessary to decide this vexed issue in this case, since we have reached the conclusion on the fact-situation herein. The decision in Sureshta Devi case may require reconsideration in an appropriate case. We leave it there." 11) These observations of this Court in the case of Ashok Hurra (supra) cannot be considered to be ratio decidendi for all purposes, and is limited to the facts of that case. In other words, the ratio laid down by this Court in the case of Sureshta Devi (supra) still holds the field. 12) In the case of Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338, a bench of three learned judges of this Court, while approving the ratio laid down in the case of Sureshta Devi (supra), has taken the view :-

"40. In the Constitution Bench decision of this Court in Rupa Ashok Hurra this Court did not express any view contrary to the views of this Court in Sureshta Devi. We endorse the views taken by this Court in Sureshta Devi as we find that on a proper construction of the provision in Sections 13-B(1) and 13-B(2), there is no scope of doubting the views taken in Sureshta Devi. In fact the decision which was rendered by the two learned Judges of this Court in Ashok Hurra has to be treated to be one rendered in the facts of that case and it is also clear by the observations of the learned Judges in that case.

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41. None of the counsel for the parties argued for reconsideration of the ratio in Sureshta Devi.

42. We are of the view that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. From the absence of one of the parties for two to three days, the court cannot presume his/her consent as has been done by the learned Family Court Judge in the instant case and especially in its fact situation, discussed above.

43. In our view it is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court while passing its decree under Section 13-B would be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent."

13) The appellant contends that the Additional District Judge, Gurgaon, was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in Section 13B(2) of the Act. We find no merit in the submission made by the appellant in the light of the law laid down by this Court in Sureshta Devi's case (supra).

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14) The language employed in Section 13B(2) of the Act is clear. The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

a. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub- section (1) and not later than 18 months;

b. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and

c. The petition is not withdrawn by either party at any time before passing the decree;

15) In other words, if the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a 11

complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression `divorce by mutual consent' would be otiose. 16) In the present fact scenario, the second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. We are of the view that the eighteen month period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant. 17) In the light of the settled position of law, we do not find any infirmity with the orders passed by the Ld. Single Judge.

18) As a last resort, the appellant submits that the marriage had irretrievably broken down and prays that the Court should dissolve the marriage by exercising its jurisdiction under Article 142 of the Constitution of India. In support of his request, he invites our attention to the observation made by this Court in the case of Anil 12

Kumar Jain v. Maya Jain, (2009) 10 SCC 415, wherein though the consent was withdrawn by the wife, this Court found the marriage to have been irretrievably broken down and granted a decree of divorce by invoking its power under Article 142. We are not inclined to entertain this submission of the appellant since the facts in that case are not akin to those that are before us. In that case, the wife was agreeable to receive payments and property in terms of settlement from her husband, but was neither agreeable for divorce, nor to live with the husband as his wife. It was under these extraordinary circumstances that this Court was compelled to dissolve the marriage as having irretrievably broken down. Hence, this submission of the appellant fails.

19) In the case of Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, a Bench of three learned Judges (of which one of us was a party), took the view:

"25. Article 142 being in the nature of a residuary power based on equitable principles, the Courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or 13

ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. This means that acting under Article 142, the Supreme Court cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case. The power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties."

20) Following the above observation, this Court in the case of Manish Goel v. Rohini Goel, (2010) 4 SCC 393, while refusing to dissolve the marriage on the ground of irretrievable breakdown of marriage, held: "19. Therefore, the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this Court generally does not pass an order in contravention of or ignoring the statutory provisions nor is the power exercised merely on sympathy." 21) In other words, the power under Article 142 of the Constitution is plenipotentiary. However, it is an extraordinary jurisdiction vested by the Constitution with implicit trust and faith and, therefore, extraordinary care and caution has to be observed while exercising this jurisdiction.

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22) This Court in the case of V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 held that irretrievable breakdown of a marriage cannot be the sole ground for the dissolution of a marriage, a view that has withstood the test of time.

23) In the case of Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73, this Court took the view:

"17. The marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. The legislature, in its wisdom, despite observation of this Court has not thought it proper to provide for dissolution of the marriage on such averments. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying spouses......."

24) This Court uses its extraordinary power to dissolve a marriage as having irretrievably broken down only when it is impossible to save the marriage and all efforts made in that regard would, to the mind of the Court, be counterproductive [See Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511].

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25) It is settled law that this Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair. Even if the chances are infinitesimal for the marriage to survive, it is not for this Court to use its power under Article 142 to dissolve the marriage as having broken down irretrievably. We may make it clear that we have not finally expressed any opinion on this issue.

26) In the present case, time and again, the respondent has stated that she wants this marriage to continue, especially in order to secure the future of their minor daughter, though her husband wants it to end. She has stated that from the beginning, she never wanted the marriage to be dissolved. Even now, she states that she is willing to live with her husband putting away all the bitterness that has existed between the parties. In light of these facts and circumstances, it would be travesty of justice to dissolve this marriage as having broken down. Though there is bitterness amongst the parties and they have not even lived as husband and wife for the past about 11 years, we hope that they will give this union another chance, if not for themselves, for the future of their daughter. We conclude by quoting the great poet 16

George Eliot "What greater thing is there for two human souls than to feel that they are joined for life - to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting."

27) Before parting with the case, we place on record our appreciation for the efforts made by Shri. Harshvir Pratap Sharma, learned counsel, to bring about an amicable settlement between the parties. 28) In the result, the appeal fails. Accordingly, it is dismissed. No order as to costs.